Organisations Have ‘Duty of Care’ for Players says Law Firm

Despite ACC, Organisations Still Have ‘Duty of Care’ for
Player Concussions, says Law Firm

Concussion injuries
in amateur and professional sporting arenas are currently
highly topical. Concussion potentially appears to have
been implicit in the recent death of a young player in
Northland.

Sports clubs, organisations and schools must
take their 'duty of care' to players seriously. Despite
most injuries of this type being covered under the ACC
scheme, there is potential for claims to fall outside the
ACC umbrella in situations where exemplary damages could be
claimed in the case of gross breaches of care.

That is the
warning given by national law firm DLA Phillips Fox’s
health law team.

“There is a potential for serious
legal consequences if sports organisations do not manage
concussion well and fail to exercise duties of care
properly,” says Partner Marie Evans of DLA Phillips Fox.
“While we in New Zealand are unlikely to see the same type
of litigation as in the USA because of our ACC scheme, there
is still potential for claimants to seek exemplary damages
in cases where there has been a gross breach of the duty of
care by anyone running the sporting event or
team.”

“We consider that the potential for this type
of claim is increasing for concussion injuries in
particular, partly because the local and international
environment surrounding these types of injuries is changing
so quickly,’ says Ms Evans. Last year there were 1,773
rugby-related ACC claims lodged with the primary diagnosis
being that of concussion or brain injury. This represents a
17% increase from 1,503 such claims in 2011.

In reference
to the changing environment, Ms Evans points to national and
international initiatives which are focused around
concussion management in sports.

“The NZRU and ACC have
jointly developed a Rugby Smart programme, which has had a
clear focus on concussion management,” she says. “For
example, all rugby coaches of grades over Under 13 level
must attend a RugbySmart Injury prevention presentation at
the beginning of every season and coaches of players aged 12
years and under are required to attend a coaching
course".

“In Northland the NZRU is trialling a ‘blue
card’ system which allows a referee to produce a blue card
if the player displays concussion symptoms requiring the
player to leave the field. The union then tracks the
player, and that player must have clearance from a doctor,
paid for by the union, before he or she can return to the
field.

“These initiatives are starting to point the way
to the fact that sports organisations, schools, teams and
administrators must do everything they can to ensure
concussed players are diagnosed, and do not return to the
field without the appropriate stand-down period and a
thorough medical assessment. If your organisation is not
exercising this sort of care, it may be at risk.”

Ms
Evans says that in the USA legislation has been introduced
into Congress to force school districts to adopt concussion
management plans. These plans educate students, parents and
school personnel about concussion recognition, response and
prevention. “The Protecting Student Athletes from
Concussions Act, if passed, would include the establishment
of a concussion safety and management plan, it would mandate
education for athletes, parents, and school personnel about
the nature of concussion and best practices to ensure
uniform safety standards, treatment and management. It would
also require that a student who sustains a concussion be
removed from play and prohibited from returning to athletic
or academic activities until he or she receives written
release from a health care professional" she says.

In the
USA, sports players have brought law suits for damages in
traumatic brain injuries sustained in sports. This
litigation has been against professional leagues, amateur
leagues, sporting equipment manufacturers and high schools.
“This includes more than 4,500 former NFL players (and
their families) who are suing the National Football League.
They reached a provisional settlement with the NFL for
US$765 million,” she says. “What’s interesting for NZ
is that the allegations included breaches of the NFL’s
duty of care for failing to protect the players on the
field, educate them and their trainers, physicians and
coaches about concussion injuries. They also claimed a
failure to design rules to eliminate the risk of concussion
during games and practices, and failure to create strict
guidelines on returning to play following concussion
injuries.”

“Because of ACC, New Zealand’s legal
environment is different from that in the USA. However, our
sporting bodies and schools would be wise to treat the
overseas litigation as a reminder to ensure they are doing
all they can in terms of administrative, medical and
educative practices. They still have a duty of care to
players,” she says.

Ms Evans is an expert in health law,
public liability and dispute resolution.

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